Assessment of civil penalties

(a) Any person, excavator, public agency or public utility which the department finds to have violated any provision of Chapter 293 of the Connecticut General Statutes, or any regulations promulgated thereunder, may be fined, after notice and opportunity for a hearing as provided in section 16-345-8 of the Regulations of Connecticut State Agencies. In such case, such person, excavator, public agency or public utility shall, except as provided in subsection (b) of this section, forfeit and pay to the state a civil penalty in accordance with the following schedule of penalties: (1) For violations which do not involve personal injury, death or property damage: (A) A minimum civil penalty of two hundred dollars ($200) for a first violation; and (B) A civil penalty of not more than five thousand dollars ($5,000) for a second violation and up to the statutory maximum thereafter. (2) For violations which result in property damage: (A) Where the amount of property damage sustained is not greater than three thousand dollars ($3,000), a civil penalty not to exceed twelve thousand dollars ($12,000); (B) Where the amount of property damage sustained is greater than three thousand dollars ($3,000), but not more than twenty thousand dollars ($20,000), a civil penalty not to exceed twenty thousand dollars ($20,000); and (C) Where the amount of property damage sustained is greater than twenty thousand dollars ($20,000), a civil penalty not to exceed forty thousand dollars ($40,000). (3) For a violation which results in personal injury or death, a civil penalty not to exceed forty thousand dollars ($40,000). (4) For any violation where a person, excavator, public agency or public utility knowingly comes in contact with an underground facility during the course of an excavation, demolition or discharge activity, and fails to notify the owner of the facility as soon as possible thereafter, a civil penalty not to exceed forty thousand dollars ($40,000). (5) Notwithstanding subdivisions (1) to (4), inclusive, of this subsection, the department may assess a civil penalty of up to forty thousand dollars ($40,000) based upon the degree of threat to the public safety, and the degree of public inconvenience caused as a result of the violation. (b) Any violation involving the failure of a public utility to mark the approximate location of underground facilities correctly or within the timeframes prescribed in section 16-345-3(b) of the Regulations of Connecticut State Agencies, which violation did not result in any property damage or personal injury and was not the result of an act of gross negligence on the part of the public utility, shall result in a civil penalty of not more than one thousand dollars ($1,000). (c) In determining whether to assess a civil penalty and the amount of civil penalty to be assessed, the department shall take into account the following criteria by way of aggravating and mitigating factors: (1) The number and nature of past violations as well as any previous decisions of the department regarding prior violations; (2) The degree of compliance with other requirements of Chapter 293 of the Connecticut General Statutes, and any regulations promulgated thereunder, especially notification to the utility in the event of damage. In particular, the department shall consider whether or not the violator has notified the utility pursuant to the provisions of sections 16-345-4(a)(1) to 16-345-4(a)(3), inclusive, and section 16-345-4(e) of the Regulations of Connecticut State Agencies; (3) The good faith efforts of the violator to have complied with the statutes and regulations; (4) The plans and procedures to insure compliance with the statutes and regulations in the future; (5) The amount of damage caused to underground facilities; (6) The nature and severity of the violation, the degree of threat to the public safety, and degree of public inconvenience caused as a result of the violation; (7) Whether the activity was performed in the course of business by a person, excavator, public agency or public utility regularly engaged in such activity; (8) Circumstances beyond the control of the violator, including, but not limited to, weather and, for violations based on the failure to timely mark the approximate location of underground facilities, lack of timely access to the site; and (9) Such other factors as are in the public interest. (d) Where the department has issued a penalty after a hearing, the department shall specify the factors used in determining the penalty by way of mitigation or aggravation.